In Alito coverage, media outlets failed to challenge GOP senators' claims about Ginsburg and Breyer
SUMMARY: Various media outlets have failed to challenge the claims of Republican senators that they disregarded ideology when voting to confirm Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer in the 1990s. In fact, both Ginsburg and Breyer were consensus nominees, suggested to President Clinton by Sen. Orrin Hatch (R-UT), and had reputations and judicial records of moderates at the time of their nominations.
Various media outlets have failed to challenge the claims of Republican senators that they disregarded ideology when voting to confirm Supreme Court justices Ruth Bader Ginsburg and Stephen Breyer in the 1990s. Republicans use this claim to argue that because Republicans voted overwhelmingly to confirm Ginsburg and Breyer, Democrats should extend the same courtesy to current Supreme Court nominee Samuel A. Alito Jr. In fact, contrary to suggestions by Sen. Orrin Hatch (R-UT) and others that they voted for Ginsburg and Breyer for reasons of comity and deference to the president, Ginsburg and Breyer were consensus nominees, suggested to President Clinton by Hatch, and both had the reputations and judicial records of moderates at the time of their nominations.
As Media Matters for America noted, Ginsburg was regarded as a moderate on the U.S. Court of Appeals for the District of Columbia Circuit. A June 15, 1993, Washington Post article reported that Ginsburg had "straddled the liberal-conservative divide of the D.C. Court of Appeals for the last 13 years" and that her "pragmatic, non-ideological approach" would most likely put her in league with such "centrist-conservatives" as justices Sandra Day O'Connor and David H. Souter. The Post article cited a Legal Times study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats.
Breyer was also frequently described as a "centrist" and a "moderate" during his confirmation. In a July 8, 1994, New York Times article, Neil A. Lewis wrote:
President Clinton has shown no inclination to try any judicial counter-revolution. He has not emptied the academies of liberal scholars to fill the courts, and his first two nominees to the Supreme Courts were moderate enough to please many Republicans.
So, when Judge Breyer is questioned by the Judiciary Committee members about his views on abortion, for example, his answers will be remarkably like those of Justice Ginsburg. And in this new low-key era, don't expect even the conservative Republicans on the panel to raise any serious objections.
Moreover, Hatch -- then the ranking minority member of the Senate Judiciary Committee -- has claimed credit for recommending both of Clinton's Supreme Court nominees. In his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), Hatch wrote that he had suggested both Ginsburg and Breyer in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt to the Supreme Court. Additionally, Hatch wrote in a footnote to his book: "Not many people realize this, but her [Ginsburg's] voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia." Hatch also described Breyer as "moderate" and "reasonable" on a May 14, 1994, appearance on CBS' Face the Nation.
Nevertheless, a January 25 New York Times article by reporter David D. Kirkpatrick on the Senate Judiciary Committee's party-line vote recommending Alito's nomination simply reported the Republicans' claims without challenge:
Recalling the overwhelming and bipartisan majorities that approved President Bill Clinton's Supreme Court nominees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, several Republican senators said their party had evaluated the qualifications of nominees on less ideological terms. They said the Democratic opposition to Judge Alito could alter the judicial confirmation process for years to come.
Similarly, a January 25 Washington Post article by staff writer Charles Babington quoted Sen. Lindsey Graham (R-SC) "chastis[ing] Democrats" for not giving Alito "bipartisan backing similar to that enjoyed" by Ginsburg and Breyer:
Graham called Alito an outstanding nominee and chastised Democrats for failing to give him bipartisan backing similar to that enjoyed by Justices Ruth Bader Ginsburg and Stephen G. Breyer, who were nominated by President Bill Clinton.
"What's changed?" Graham said. "It's not the quality of the nominees, it's the quality of the process." He said Democrats want to make "a campaign issue of the decisions on the court." In that contest, he warned Democrats, "we'll clean your clock."
On the January 24 edition of CNN's Lou Dobbs Tonight, host Lou Dobbs interviewed Hatch, who pointed to the Ginsburg and Breyer nominations in claiming that Republcians "never had a litmus test" and bemoaned the "different tack" taken by Democrats. Dobbs failed to challenge Hatch or to even note Hatch's role in the Ginsburg and Breyer nominations. From the January 24 Lou Dobbs Tonight:
DOBBS: Do you see any way, Senator Hatch, to remove Roe v. Wade as the litmus test, the fulcrum point in this?
HATCH: Well, it's become a major, major litmus test by Democrats. We've never had litmus tests before. I'll cite with particularity, we knew, as Republicans, that Ruth Bader Ginsburg and Stephen Breyer, were both pro-choice, they were both social liberals. But Ruth Bader Ginsburg on a 96-3 vote, Stephen Breyer got an 87-9 vote. Republicans voted for them because they were qualified. And Bill Clinton was the president. But Democrats have taken a different tack here, and I think it's very detrimental and harmful to the nation.
Hatch also appeared on the January 24 edition of Fox News' Hannity & Colmes. Co-host Sean Hannity asked Hatch about the "very gracious" treatment he accorded Ginsburg and Breyer:
HANNITY: Well, you know, it's very interesting to me. You just heard that there's a litmus test. You know, Senator, look, I may not be as gracious as you. And I mean this sincerely. You were very gracious about Ruth Bader Ginsburg, about Judge Breyer. You compare the treatment of the Republicans to people that I believe are very out of the mainstream. And I'm just wondering: Is it time for Republicans that are nice like yourself to start taking the gloves off, if there's another Democratic president? Look at how they treated this man. I don't think they -- I think they had made up their mind before they even got in committee, am I right?
HATCH: Well, there really was shabby treatment. There's no question about it. This was the first time in history for a nominee who reported out of the committee, that there was a straight partisan vote. It's never happened before. And frankly, to do that to this fellow, who had the support, you know, of virtually everybody who's ever worked with him, including seven of his colleagues, including, you know, both Democrats and Republicans, on the 3rd Circuit Court of Appeals, who said that he's a tremendous judge, including the American Bar Association, that gave him the highest rating possible twice now. And, you know, it's really pathetic. I'm really concerned about it.
[...]
HATCH: And, you know, it all comes down, Susan [Estrich, guest co-host], to abortion. You know it; I know it. They're just terrified of these far-left groups that just seem to control the Democrats in the United States Senate. It's pathetic. When the far-right groups came to me as chairman of the committee and demanded that we -- that we mistreat Ruth Bader Ginsburg and Stephen Breyer, I told them, "Get out of the office." We're not going to let them determine what our votes are, and we're not going to play that type of ridiculous game. And Ruth Bader Ginsburg passed 96-3, even though we knew she was pro-abortion, even though she was, in our opinion, wrong on the social issues. Same thing with Judge Breyer, Justice Breyer. He passed 87-9. I mean, we treated them fairly, and that's in contrast of the way this really fine man is being treated.
This is very thin ice the Democrats are treading upon here, for they haven't a leg to stand on. The only reason they are against this nominee is strictly ideological, that is undeniable. Every reasonable person knows Alito is more than qualified to be on the bench, just as was Ginsberg and Breyer -despite their political beliefs.
The difference was this;
When the Republicans were facing Ginsberg and Breyer's nominations they didn't give into their far right wackos who wanted the abortion issue to be a litmus test. They voted to confirm.
The Democrats buckled under to their far left supported groups and made abortion the litmus test.
Alito will rubberstamp the whims of corporations and republican presidents for decades.
It's funny, I was listening to "Ginsberg precedent" spin on Fox News while I clicked on this item.
Don't kid yourself, when it comes to Boxer or Kennedy it's always about abortion - their pockets are lined with too much money from abortion rights supporters. They wouldn't let them vote to confirm any nominee that isn't rock solid pro abortion.
Another conservative lie.
If you took abortion off the table completely, Alito's list of demerits is still as long as my leg.
START with his ridiculously pro-corporate stance on just about everything. The guy never met a corporate defendent he didn't like. Victims be damned; gotta keep the corporate money machin a-turnin'.
Then there's the indefensible expansion of executive power. I wanna know, conservatives, would you have wanted Clinton to have the kind of power you're so blithely handing to George W. Bush?
(And spare me the "b-b-but Clinton..." rhetoric. Every single talking point regarding Clinton and executive power during his administration has died a quick, gasping death.)
A president unchecked is a dictator. Period. And Alito loves the idea.
You got it. This so-called moral discussion regarding Roe v. Wade is a smokescreen (or, at least, a very minor player). Unchecked executive power is the real scare...
cleared for immediate release
...troops massing on an otherwise 'quiet front'
...27 declared, as of this dispatch
...most recently one from AR (despite AR ad campaign)
...as many as 15, perhaps 16 more on the way
...as more troops find the field, more dispatches shall follow
[no need to remind what 41 troops on this field signals]
end of dispatch
updated
...continued troop movement, to a front no longer so 'quiet'
...32 declared, as of this dispatch
[again, no need to remind what 41 troops on this field signals]
...'f-word' heard said by one (strangely from a neutral country, switzerland)
...rumors swirl of a defection; defector code-named 'snow flake'
...engagement scheduled unilaterally, for mon. (1-30)
[1-30 day before s.o.u. address; this action may break on several fronts; suggest full-alert status and cancellation of all leaves]
end of dispatch
Roe v. Wade is a minor player with this guy Alito. Alitos support of Unitary Executive Power is the driving force in this nomination. You couple Alito and Roberts and you've got a supreme court that ALWAYS sides with big gov't or corporations -- i.e. say bye-bye to the notion of the little guy (like me) of having a voice.
Abortion is the carrot.
While I definitly have ideological problems with Scalito. I also am put off by his ethical improprieties. He promised to recuse himself under certain circumstances having to do with financial conflicts of interest then didnt do so. Also when Clinton was President he checked with the other side and nominated moderates. Even YOU have to admit Scalito is an extreme rightwing choice. The idea that because the GOP went along with moderates the dems are obligated to support ideologues does not compute
Tommy says, " The only reason they are against this nominee is strictly ideological, that is undeniable."
RESPONSE: I DENY IT, and I also challenge your ability to call something "undeniable". Sure, it fits your OWN partisanship, but it's not true.
It's not IDEOLOGICAL to expect a nominee to be ethical. This nominee failed to recuse himself, EVEN AFTER PROMISING TO DO SO, when ruling on cases in which he had financial interest.
It's not IDEOLOGICAL to expect a nominee to tell the TRUTH. This nominee simply refused to answer questions, by claiming there may be cases come before him should he be approved. This included Bush v. Gore, which set no precedent. Fully able to discuss his legal analysis of the basis for that case and others, instead he lied and said he could not answer.
It's not IDEOLOGICAL to support the Constitution, and its CO-EQUAL branches of government. This nominee is on record supporting the "unitary executive", which gives elected people more power than the judiciary. His "reading" of the Constitution is thus bogus and more in line with a totalitarian regime than a free America.
It's not IDEOLOGICAL to expect the nominee to support the Constitution's guarantee of "Equal Rights Under the Law". Yet, this nominee belonged to a sexist/racist organization for TEN YEARS at least, bragging about it in a resume, then without any credibility at all denied knowing much ABOUT the organization.
None of these are "partisan" issues, and any ONE of them is reason to reject a nominee.
What Tommy says cannot be denied, can be denied easily and with ample proof. What CANNOT be proven is Tommy's contentions, based on rightwing talking points and not FACTS.
What Tommy says cannot be denied, can be denied easily and with ample proof. What CANNOT be proven is Tommy's contentions, based on rightwing talking points and not FACTS.
There is little question in MOST rational people's minds that in the past, President's were given deferrential treatment as it relates to Judicial appointments, history here is clear. For Tex to suggest otherwise is simply re-writing history and not a new tactic of his and the left's in general. That said, this NEW way of approving justices is just fine as far as I'm concerned, I just hope that if and when the day comes that Republicans are in the minority that they recall that the rules have now changed. It is perfectly American to filibuster judges, it is perfectly American to hold judges to ideological tenants, it is perfectly American to smear good men and women in the interest of ideology. I really don't have much problem with the "new" rules, I just really hope that Republicans recall them in that ever so distant day that they may be in the minority.
So when the GOP held up more than 60 of Clintons nominations they were 'giving deferential treatment to his judicial nominees' HOW? Did Bork get deferential treatment? Abe Fortas? There is some rewriting of history here alright and YOU are doing it.
"The only reason they are against this nominee is strictly ideological, that is undeniable."
So you think everyone voicing very valid reasons to oppose Alito are just lying? They can't possibly believe that he has no credibility (as demonstrated) or the he believes a little too much in unitary executive power? How can you say it's undeniable? You're so close minded.
what you will get with a Supreme Court Justice. Ike wasn't happy with his pick of Warren in the later years. O'Connor was not the idealog that one would expect of a Reagan appointment. Would JFK have agreed with all of Byron White's opinions? To be truthful, I really don't see mis-information in the above post and do see a lot of truth in Tommy's lead-off.
You can rest assured that Alito will tow the line. Republicans aren't going to make the same mistake by actually appointing someone as solidly moderate as O'Connor was. I believe assurances have been made by Alito in overt and covert ways.
I had hoped Roberts would be more independent, but he has disappointed in many ways already. He is already installed into the conservative bloc.
There is no doubt in my mind, we should all brace ourselves for a very conservative/reactionary court. Almost every 5-4 decision of the last 20 to 30 years will now swing the other way. This is a huge step back for our country. The only thing that could make it even worse would be another moderate or liberal vacancy.
An independent will be with one side at times and with the other side at times. While Roberts may turn out to be more conservative than most here would like, it is far too early in his career to "box" him into the Conservative corner. Future rulings will tend to surprise both sides, I believe. Time will tell, and it will take far more than 4 months to be a good barometer.
I hope you are right. He seems like a good guy. You are correct that only time will tell and it is too early to box him in as I have done.
Please forgive my cynicism. I haven't had much good news politically for about a decade.
Barbara Boxer said that she would not support a nomination that wasn't pro choice. Is that not ideological?
Why don't you ask Harriet Myers about that one.
Funny how this site likes to claim RBG is some sort of moderate, yet never cites any examples of her "moderate" positions.
... Get a copy of Orin Hatch's "SQUARE PEG" book. Hatch received ADVISE (of "advise and concent" fame) from President Clinton, and Hatch promptly told Clinton NOT to nominate Bruce Babbit, but that Ginsburg would be a much better and MORE ACCEPTABLE nominee, not likely to get opposition from Republicans.
After all, Ginsburg's record on the bench was nearly identical to Antonin Scalia's! A very "moderate" justice, acceptable to the Right.
Hatch, of course, hopes nobody will notice his actions THEN, and NOW. If unchallenged by "the Media", Hatch can make it seem as if there is a "Ginsburg Standard" which calls for acquiescence, when in fact the "GINSBURG STANDARD" is to employ advice and consent (which Bush rejects) and to choose a MODERATE (which Alito is NOT).
Sad to see Hatch deny his history and LIE in the service of the Bush administration.
Get a copy of Orin Hatch's "SQUARE PEG" book. Hatch received ADVISE (of "advise and concent" fame) from President Clinton, and Hatch promptly told Clinton NOT to nominate Bruce Babbit, but that Ginsburg would be a much better and MORE ACCEPTABLE nominee, not likely to get opposition from Republicans.
There is ONE BIG difference. Republicans UNDERSTOOD and fully expected Clinton to nominate a "liberal." They also understood that as President, that was his understood right to do so. Democrats have changed the rules or are incredibly stupid. Didn't they EXPECT for Bush to nominate a conservative? No, no matter how you spin it, Democrats have changed this and MANY rules since they have found themselves without the power of the gavel. I just hope Republicans remember ALL the rules changes in the unlikely even they find themselves in the minority with a President of the other party.
So, by your own admission, ANYONE who Bush nominates should be completely dismissed as partisan and unacceptable by the opposing party. Pardon my naivete, but that's what our gov't has been reduced to?
What would be the harm if Bush nominated even a semi-moderate conservative justice for this life-long post to the supreme court? But, I suppose we're well beyond working together in gov't. Is that lefty whining? At this point, we're beyong partisan politics here...Forget about Roe v. Wade...The big worry is Alito's support of unitary executive power. Nominate Alito and all this NSA wiretapping nonsense will be moot. Bush will do what he wants whenever he wants.
A writer sent a letter to the editor of one of my local papers and suggested that Supreme Court judges should be limited in their terms, like for 10-12 years instead of for life. This sounds totally reasonable to me, perhaps Congress should amend the term limits for Supreme Court justice appointments.
Alito is such a fan of the "unitary executive" that surely he will uphold Bush's "signing statements", like his attached rider that nullifies the President's obligation to abide by the McCain's anti-torture bill. Statements that traditionally merely noted and congratulated the members of Congress who brought the bill into being are now being used by Bush to make his own amendments contrary to the Congressional intent of the bill. Are these "signing statements" Constitutionally legal? Maybe the minute Alito gets his black robe on.
ps Where is the outcry by McCain over this blatant attempt to bypass his anti-torture bill by the Executive branch?
The appointments are being calculated to put in people who think like this President and the rest of his administration. Bush needs people on the bench who disregard the portions of the Constitution and Bill of Rights that would seem to keep Bush's policies in check or at least obstruct him in some way.
Remember Harriet Myers as Whitehouse Council, was behind much of the implementation of the controversial policies of this president. He is packing the court with allies, who were part of the problem to begin with.
The appointments are being calculated to put in people who think like this President and the rest of his administration.
Can you point to me the last President who nominated someone for the Supreme Court that said that part of the nominee's qualifications were that "he doensn't think like me or my constituents? Duh!!
I worded it poorly. This President wants to put people in the Judiciary who will rubber-stamp his policies that rape the Constitution.
Many people are under the false impression that President Bush is picking judges with a particular judicial philosophy, temperament or qualifications. That does not seem to be the case. Personal and party loyalty are his ultimate standards here. Everything else is pretense.